12 Utah 119 | Utah | 1895
The complaint in this case was filed on the- 12th day of December, 1889, by the then United States attorney for Utah, alleging that the lands in township 15 S. of range 13 E., Salt Lake meridian, situate in Emery county, Utah territory, are public lands of the United States, and that the defendant had constructed and was maintaining a fence inclosing a body of public lands of the United States of about 16 miles in area; and that none of the lands so inclosed had ever been entered for settlement or purchased at any of the offices of the United States, nor settled upon nor appropriated with a view to entering or acquiring title to the same. The complaint further alleges that, at the time the fence was made, the defendant had no claim or color of title to any of the said lands so fenced; made or acquired in good faith, and had not theretofor asserted, and does not now assert, any right thereto b.y or
This proceeding, as will be seen from the foregoing recitals, was instituted by the United States attorney under the act of Congress approved February 25, 1885, making it unlawful to inclose any of the public lands of the United States where the party making the inclosure has no “claim or color of title made or acquired in good faith or an asserted right thereto by or under a claim made in good faith with a view to the entry thereof at the proper land office under the general laws of the .United States at the time any such inclosure was or shall be made.” When the case was before this court on -a former appeal, it was held that the lands contained in section 16 were not public lands of the United States, within the purview of the act of congress above mentioned, because of the reservation of such lands for school purposes by the- fifteenth section of the organic act of Utah, which provides as follows: “That when the lands in said territory shall be surveyed undhr the direction of the government of the United States preparatory to bringing the same into market, sections.num
The first question is whether the former decision of this court is. to be considered an adjudication by which this court is now bound; in other words,, whether it is the “law of the case ” in such a sense that this court cannot reverse its own judgment. In the case of Steele v. Boley, 6 Utah, 308, 22 Pac. 311, it was held that the statute of limitations begins to run, against one who claims public lands as grantee of the United States, in favor of the one in possession, claiming to have acquired the title thus acquired by the patentee, from the date of the patentee’s certificate of the final proof and payment. Upon this holding, the judgment in the case was reversed, and the cause was remanded for further proceedings. Such proceedings were had as, resulted in a judgment in accordance with that holding. A further appeal having been prosecuted to this court from that judgment, the former judgment was overruled, and this court held that the statute, of limitations began to- run against the patentee of public lands from the United States from the date of the issuance of the patent, and not from the date of the final payment.for the land. 24
In the case of Burrows v. Kimball (decided hy this court at the June term of 1894), 11 Utah, 149, 41 Pac. 719, this court held that the territorial legislature had no right to pass any law giving authority to the county courts of the several counties to lease the school lands reserved by the organic act, and the question is pertinent, if these lands are not under the control of the territory, under whose ■control are they? This whole question came before the ■supreme court of Washington territory in February, 1888, and that court, in a well-reasoned opinion, held, speaking ■of lands reserved for school purposes, that: “The mere ■survey of these lands would not cause them to lose their ■character of public lands. Such change could occur only when they have lost their public character by reason of a bona fide right of private entry or ownership under the United States. Now, because of the mere reservation or appropriation by the United States of these sections, for the purpose of being applied to the common schools of the future, do they lose their character of public lands? It is true that they are not public lands in that they are open to entry; but that fact alone does not prevent them being, in a certain sense, public lands. The government has, for a wise purpose, set apart and reserved these lands from the general domain, and announced the purpose for which they will be devoted. It retains control and dominion ever these until the happening of a certain event. It is somewhat as a trustee of an express trust. It also retains the right, up to a certain time, to annul the act by which such sections were reserved, and might, wi-thin that limit, annul the former act, and throw these lands open as public' lands. This reserved right in the government must give it control over these lands as absolute as that of any owner could be.” Seasoning further, the court says, in
This court has decided that the territory has no right to pass any law concerning the disposition and control of the lands; and, if it shall now hold that the general government had no such right, then they are left entirely without any protection, and open to every one. The supreme court of the territory of Montana has likewise considered this question, and has come to a conclusion in harmony with that of the supreme court of Washington, and at variance with the decision of this court. U. S. v. Bisel, 19 Pac. 251. It will be found by an examination of the opinion of the chief justice, McConnell, in the Montana case, that the very cases cited by the learned judge who delivered the former opinion in this case were urged upon the court, and that the chief justice reviews these cases, and shows beyond question that they do not decide what is claimed. This court has held, speaking through Justice Bartch, in the case of Hyndman v. Stowe, 9 Utah, 23, 33 Pac. 227, that the title to these school sections is in the United States. This opinion is in direct-conflict with the language heretofore quoted from the case in 7 Utah. The truth is, the decisions of this court upon this question are in a state quite confused, to say the least.
Upon a full review of this case, I am of the opinion that the judgment should be reversed, and the cause remanded for a new trial.